By MARK PEARSON Follow @Journlaw
The resources of the Queensland Police Service Facebook fan page were stretched over the past 24 hours to cope with the public response to their announcement of an arrest of a suspect in one of Brisbane’s most compelling ‘whodunnit’ murder mysteries.
Mainstream and social media speculation about the case has been rampant since 43-year-old Allison Baden-Clay went missing on April 23. Her husband Gerard appeared in court today charged with her murder.
As I have blogged previously, the Queensland Police Service has a highly successful Facebook page which established the bulk of its 289,500 fan base during the devastating Brisbane floods in January last year. It proved an excellent community communication tool during the disaster and since then as a crime detection aid as the public volunteer leads on unsolved crimes and public safety.
But the challenge comes when Police Media announce on their Facebook page the apprehension of a suspect in a high profile case.
The problem with Facebook fan pages is that you must have the ‘comment’ function turned completely ‘on’ or ‘off’ – so the best the police can do is monitor the feed and remove offensive or prejudicial material after it has been posted.
That might be fine during an uneventful day when the police social media team can keep on top of the message flow – but when an arrest has been made in an emotion-charged crime like a murder or a child sex attack many fans want to ‘vent’.
That’s what happened with the arrest of a suspect in the murder of Sunshine Coast teenager Daniel Morcombe last August.
It happened again last night and today as, within 21 hours, more than 500 fans commented on the Police Media announcement that Baden-Clay had been charged with his wife’s murder and more than 1,500 ‘liked’ the announcement. Those 506 comments were the ones that survived the post-publication moderation process where officers in the social media unit trawl through the latest posts to delete the inappropriate ones.
The law of sub judice in Australia dictates that nothing can be published that might prejudice the trial of an accused after they have been arrested or charged. That includes any assumption of guilt (or even innocence), evidentiary material, theories about the crime, witness statements, prior convictions or character material about the accused. It even bans visual identification of the accused if that might be an issue in court. In a murder trial it usually is.
The penalty can be a criminal conviction on your record, a stiff fine and sometimes even a jail term for contempt of court.
Once the accused has appeared in court, journalists covering the matter are protected from both contempt and defamation action if they write a ‘fair and accurate’ report of the hearing, sticking to material stated in open court in the presence of the jury – if there is one.
It’s hard enough for reporters to get their heads around these rules – let alone the Facebook fans posting their theories on a murder to the police Facebook page.
Even some of the posts that have survived the police editing process to date push the boundaries of acceptable commentary on a pending case.
One stands out: “Ann Gray: Took long enough. It was obvious that he did it. Hope he rots in jail.”
That was six hours after the announcement, and obviously the moderators were running short on patience with their ‘fans’. The moderators took to calling those speculating on the crime “Facebook detectives”. One replied to Ms Gray: “Queensland Police Service: Ann Gray *sigh* Really? The third detective we have commenting on here that does not comprehend what it takes? I suggest you don’t pass judgement on something that you know nothing about!”, and then “Queensland Police Service: I am not sure ‘because it is obvious’ is suffice (sic) evidence in court, Facebook detectives. It is a matter before the courts. Enough!”
They also tried with a standard warning to commenters that was pasted into the discussion on several occasions: “Facebookers who are just joining this post, please do not speculate on this matter. Any posts which do are deleted and those who continue will be banned from our FB page. Please respect our rules. Thanks.”
One fan – Bec Mooney – suggested the police disable their comments function if they were so concerned about offensive and prejudicial material appearing, to which the police replied: “Queensland Police Service Bec Mooney – WE CAN’T DISABLE COMMENTS. Take that issue to Facebook. Even if we could, it would contradict the idea of social media.”
Do I sense a little attitude here? Clearly, the officers were getting tired and frustrated in the midst of the onslaught of the ‘lynch mob’, but surely the correspondent Ms Mooney had a valid point.
As I blogged earlier this week, Australian courts have ruled that the hosts of such fan pages are legally responsible for the comments of others on their sites and must act within a reasonable time to remove illegal or actionable material.
But they haven’t yet had to rule on a serious sub judice matter – so the key question is: How long is it reasonable for a prejudicial statement like the ‘obvious he did it’ and ‘rot in hell’ comment to remain on a public law enforcement agency’s Facebook page? It had been there 15 hours when we took our screen shot and may well still be there when you are reading this.
These rules apply to the mainstream media, and the police fan page has been so successful that it is now Queensland’s biggest publisher on some counts. Its fan base outstrips the Courier-Mail’s circulation, which peaks at 255,000 on a Saturday. And that newspaper – Queensland’s biggest – has fewer than 20,000 fans on its Facebook page. The ABC has just 91,000 nationally.
They aren’t allowed to publish this kind of prejudicial material.
Surely the police have even less excuse for hosting such comments even for a moment. The Queensland Police Service is the arresting and prosecuting authority whose job is to preserve the integrity of the justice process.
I fear it will not be long before a savvy defence lawyer seizes the opportunity to use such prejudicial commentary as grounds for appeal – perhaps resulting in a trial being aborted at great public expense or even a verdict quashed. That would be the exact opposite of what most of these commenters and the police would want.
Social media is clearly a superb resource for police and other agencies to use to connect with their communities and to build public trust. But let’s get sensible with this.
Instead of boasting to the whole world about a high profile arrest like this one, surely the police can hold back and let the mainstream media publish their announcement just as they have done for decades. The message would still get out and at least they would not then have the headache of the avalanche of comments in response to this kind of PR announcement.
The police argue that disabling comments might “contradict the idea of social media”, but surely their hosting of prejudicial material – even for a short time – contradicts the valued right to a fair trial of those they have arrested.
© Mark Pearson 2012
Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.